By Sukhram Ramkissoon
As a result of numerous enquiries by permanent residents concerning the loss of immigration status due to absence from Canada, I will give some insight into the loss and retention of status.
Immigration law requires a permanent resident to be physically present in Canada for at least 730 days in the five-year period immediately preceding their application to enter Canada. Here, I will discuss a recent case on this topic dealt with by the Immigration Appeal Division.
In October 2010, a family applied to renew their permanent resident card. They were called in for an interview. The officer concluded the family did not comply with their residency obligation and that there were insufficient humanitarian and compassionate considerations to overcome their failure to comply and retain their permanent resident status.
They applied to the appeal division and did not challenge the legal validity of the officer’s decision but argued there were sufficient humanitarian and compassionate grounds to allow the appeal.
The family consisted of a father, 55, mother, 52 and son 27 and were originally from the Middle East. They obtained permanent resident status on Sept. 20, 2005. They returned to their country in January 2006 and returned to Canada in late 2009.
During the five-year period under examination – from May 28, 2006, to May 27, 2011 – it was found that the father was physically present in Canada for 484 days, while the mother was present for 439 days and the son for 492 days.
Panel members are guided by case law which established that the following factors must be taken into consideration when determining humanitarian and compassionate considerations:
- The extent of noncompliance with the residency obligation;
- The appellants’ initial and continuing degree of establishment in Canada;
- The reasons for their departure from Canada;
- The reasons for their stay abroad;
- The ties to Canada, in particular family in Canada;
- Whether the appellants made reasonable attempts to return to Canada at the first opportunity;
- The hardship the appellants would face if they were to return to their country;
- The hardship their family in Canada would face if they were to return to their country;
- The best interests of the child directly affected.
At the hearing, they testified that they came to Canada in September 2005 with the intention of settling. They rented an apartment and bought a car and furnishings for the apartment and because of a lack of money, the mother’s health concerns and the fact their son could not enroll in a Canadian university, they decided to return to their country where their son was accepted in a university. They came back to Canada in December 2009 after their son graduated.
The minister submitted that the appeal should be dismissed as what they did was “too little, too late.” Permanent resident status brings privileges and the duty to integrate into society and contribute to it.
The panel was of the opinion that the family took the necessary steps to integrate themselves in Canada since their return in 2009 and is consequently well established. They have contributed to Canadian society through volunteer work and educational and social involvement.
The panel also stated their subsequent establishment is a very positive factor and that it prevails over the other negative factors in the evaluation of humanitarian and compassionate considerations.
The panel allowed the appeal and ruled the family have not lost their permanent resident status.
Sukhram Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Suite 219A, Toronto. Phone 416-789-5756.